Constitutional Protection Research Articles

Aplicación del principio de precaución para amparar los derechos a la salud y a un ambiente sano: análisis de la Sentencia T-1077 de 2012 de la Corte Constitucional

This paper studies the Constitutional Court of Colombia decision T-1077/2012, one of the most important precedents of constitutional protection of the Right to health through the precautionary principle. The objective proposed by the authors is to study the conditions of invocability of the precautionary principle that were considered in the sentence. Based on the precedent of this case, the Court created a line of interpretation that transcended to other fields, by extending its application in a reinforced manner. The methodology used was a systematic review, through a meta-analysis of the case decision, as well as a documentary analysis of the specialized literature. The paper concludes that this case became a reference for the future application of the precautionary principle in public health. The Court moves away from the classical conception of the principle to prevent strictly environmental risks, reformulating its constitutional protection to the field of the right to health, in a context of scientific uncertainty.

Constitutional Guarantees of Intellectual Property Protection in the Context of Digital Transformation: Ukrainian Experience

The purposes of this research are to determine the legal status of intellectual property in the context of digital transformation; to analyse the role of innovative digital technologies in the legal regulation of intellectual property issues; to provide a detailed description of the measures of constitutional protection of intellectual property in the context of digital transformation in Ukraine; to systematize knowledge about constitutional guarantees of intellectual property protection; to determine the role of specialised courts in ensuring intellectual property protection; to provide specific proposals for the development of the legal framework for intellectual property protection. An important aspect of the current study is an in-depth analysis of the challenges and threats of digital transformation to intellectual property. In order to achieve this purpose, the following methods were used: the general philosophical method, the method of system analysis, synthesis, the dialectical method and the formal logical method, the method of deduction and induction. These methods have been used to formulate scientifically significant and practical conclusions on proposals for improving intellectual property legislation in line with the challenges and threats of digital transformation, as well as to provide interim conclusions in accordance with the research purpose.

Gender Equality Through Abortion Rights: Exploring the Constitutional Framework and Social Justice

This paper examines the legal protection of the right to abortion under the U.S. constitutional framework and its impact on women's equality. The study traces the historical and jurisprudential development of the right to abortion and examines the impact of restricting this right on women's education, employment, and overall social justice. This is achieved through the analysis of relevant legal documents. The findings indicate that the protection of the right to abortion is crucial for the assurance of women's autonomy in matters of reproduction, and has a substantial influence on their educational and economic prospects. The paper concludes that the constitutional protection of abortion is a crucial step in achieving gender equality and social justice. It is incumbent upon governments and courts to promote gender equality and social justice by introducing legislation to protect the right to abortion and by creating social security systems. The following section will examine the aforementioned topic in greater detail.

Comparative Study of Essential Religious Practices under Secularism in India, France, and the USA

This paper compares and contrasts the idea of fundamental religious practices under secularism in France, India, and the US, examining how each nation strikes a balance between religious liberty and official impartiality. A positive secularism approach exists in India, where the state interacts with religion to guarantee equality while courts decide what "essential religious practices" are worthy of constitutional protection. France adheres to a more rigorous form of secularism called laïcité, which emphasizes a clear separation between religion and state, frequently limiting religious expression in the sake of maintaining governmental neutrality, particularly with regard to Islam. Under the First Amendment, the United States employs a separationist approach that guarantees both the free exercise of religion and its non-establishment. However, there are obstacles in balancing religious liberty with public policy and anti-discrimination laws. The study comes to the conclusion that although all three nations strive to maintain secularism, there are differences in how different historical, cultural, and legal settings are interpreted, making it difficult to accommodate religious practices.

Understanding Constitutional Principles for the Advancement of Digital Rights in Palestine

Abstract Information and Communication Technologies raise new legal issues, risks and implications regarding the rights and legal protection of individuals in cyberspace. Constitutions generally protect basic rights and freedoms. Departing from the importance of constitutional protection concerning basic rights and freedoms, this article aims at assessing the constitutional and legal status of digital rights in Palestine, while considering the political and legal challenges. It studies the concept of digital rights and their protection in the Palestinian Basic Law, as constitutional norms. The article finally analyses the available constitutional remedies to address implications of the new and emerging needs to protect human rights in the cyberspace. The article argues that the existing constitutional principles should be understood broadly from a human-rights-centred approach to address risks and implications of technologies on human rights.

THE PRINCIPLE OF NEMO TENETUR SE DETEGERE IN THE AGE OF DATA

The objective of the present article is to examine the manner in which the Italian criminal justice system protects the nemo tenetur se detegere principle in the digital era, with a view to providing an insight into this approach for an international audience. In doing so, the article will also consider the experience of other legal systems and the jurisprudence of the courts. In Italy, the nemo tenetur is a right that has its origins in the constitutional protection of the right of defense and the presumption of innocence. There is considerable debate surrounding the extent to which the right should be safeguarded. While the majority of scholarship advocates for the broadest possible extension of the right, this view is not universally accepted: the Cassation court has recently adopted a more lenient approach to the protection of the privilege against self-incrimination, which may permit the use of the suspect's refusal to cooperate as grounds for adverse consequences. The issue arises in instances where law enforcement officials require evidence stored on a laptop or mobile phone that cannot be retrieved without a password, or without the potential for irreparable data loss. Questions arise. Does the obligation to disclose one’s password constitute a form of self-incrimination or a violation of the right to remain silent? Would granting police the power to compel passwords cross a linecenturies old against forcing a person to speak to build the case against them? What are the differences between traditional passwords and biometrical authentication, and what difference does this make for the privilege against self-incrimination?

Media politics in Japan: News journalism between interdependence, integrity, and influence

AbstractAlthough Japan is generally considered a liberal democracy with a free press, concerns about media independence have repeatedly been raised. The World Press Freedom Index ranks Japan last among G7 nations. One of the major reasons for its performance lies in a deep-rooted entanglement of the mainstream media with the political establishment, which is said to promote a climate of self-censorship and impede courageous, critical journalism. While the government-approved reporters’ clubs (“kisha clubs”) are often cited as lying at the heart of the problem, there are other relevant structural and historically grown factors hindering the improvement of press freedom: Despite theoretical constitutional protection, media governance in Japan does not provide an adequate framework for journalistic independence; furthermore, revolving door politics, editorial interventions and informal arrangements are well-established practices inside the sphere of media and politics. Nevertheless, there have been those critical moments when the mainstream media, in fact, influenced the course of politics. Setting out from the present condition of media democracy in Japan, this article traces back the historical roots of the seemingly firmly ingrained relationship between journalism and the state. Thereby, it portrays the ambivalent interdependence between the media and politics, and the dilemmatic tension between journalistic integrity, economic interests, and political influence. Finally, it explains why the current hegemony of the legacy media in the public sphere may eventually face a silent, but profound transformation in light of digitization and advancements in artificial intelligence.

On the Constitutional Protection of Carbon Emission Right as the Right of Development

Since the development of the second human rights, the right to development, as the third human rights advocated by developing countries, has become popular. Under the two-carbon target, some scholars say that the carbon emission right is the right to development, and it is a basic human right for developing countries. To be sure, with the total amount of carbon emissions fixed, both the speed and level of development are closely related to the amount of carbon emissions allocated. But now double carbon joint agreement distribution unclear terms, developed countries and developing countries demand for carbon emissions and carbon neutral ability difference is bigger, the corresponding management of carbon emissions is more policies and regulations, the lack of host rules of supply, constitutional guarantee, has affected the double carbon under the goal of national development and construction. Therefore, as the right to development of carbon emissions protection should be in the constitution respect and safeguard human rights and the principle and the principle of rule of law as the guidance, establish a sound legal system of carbon emissions, reasonable balance production development and double carbon target relationship, concrete refinement to implement the limit of carbon emissions related laws and regulations, realize the constitutionality of the legal order.

Confronting our failures: Tensions in remedying systemic discrimination in Canada

This article examines the complexities of providing remedies for systemic discrimination in light of evolving understandings of equality and justice. Despite constitutional and statutory protections affirming the right to live free from discrimination, there remains a significant gap between recognizing systemic discrimination and implementing effective remedies. The 2021 case of Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada serves as a focal point to highlight the shortcomings of the current remedial framework, which often prioritizes corrective over transformative justice, reflecting a formal rather than substantive approach to equality. In this case, the Canadian Human Rights Tribunal found that Canada’s inequitable funding of First Nations child welfare services was discriminatory on the grounds of race and national or ethnic origin. It ordered Canada to compensate every child impacted, while simultaneously imposing systemic remedies such as reforming federal funding policies. By exploring the Tribunal’s decision to uphold both individual and systemic remedies, the paper argues for a more integrated approach that moves beyond the dichotomy of individual versus systemic discrimination. It advocates for co-designed remedies informed by the perspectives of affected communities, calling for a shift in how systemic discrimination is addressed within Canada’s legal framework.

THE TRAGEDY OF FELIX FRANKFURTER: FROM CIVIL LIBERTIES AND CIVIL RIGHTS ACTIVIST TO REACTIONARY JUSTICE

This article reconsiders the life and record of Supreme Court Justice Felix Frankfurter. Frankfurter was smart, hardworking, and talented, serving as a great activist lawyer and important law professor in his early career. When nominated to the court, there were high hopes he would follow Holmes and Brandeis in leading a progressive Court that would protect civil liberties and minority rights. However, it was not to be. On the Court Frankfurter became increasingly conservative and ultimately reactionary. In his opinions, he upheld persecution and discrimination of religious and racial minorities, occasionally hindered racial justice and civil liberties efforts, and opposed due process in criminal trials and fairness in elections. Arrogant and dismissive, he constantly fought with his brethren, alienating almost all of them. In the end Frankfurter was far too often on the wrong side of history, liberty and the law, and even legal ethics. The tragedy of Frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. He could have been a great justice. Sadly, he was not.

Exploring the Dimensions of Religious Freedom: A Global and Comparative Analysis

Religion constitutes a fundamental aspect of the cultural and spiritual lives of individuals globally, encompassing an array of traditions, rituals, and practices. Within the context of liberal democracy's evolution, religion emerges as a critical element of political liberty and personal conscience. On an international scale, the right to religious freedom has been established as a core human right, essential for the sustenance of democratic governance. Despite its recognition, the right to religious liberty remains a highly contentious issue. Even in democracies that provide constitutional protections for religious freedom, debates persist regarding the extensive interpretation and implementation of this right, particularly concerning the rights of religious minorities within these nations. This study explores the concept of religious freedom as a globally recognized right, examining its representation and interpretation across various international and regional legal frameworks. Through this analysis, the paper endeavors to provide a comprehensive overview of religious freedom on both a global and regional scale. Furthermore, it delves into the state of religious freedom in various political systems, ranging from democracies such as United States to theocracies and monarchies like the United Kingdom and countries characterized by a strict demarcation between religion and state affairs, exemplified by France's secularist approach.

Digital Rights in Palestine: Prospects of a Constitutional Judicial Review

Abstract A set of rights and freedoms are protected by constitutions and interpreted by the competent judiciary. The increasing use of information and communication technologies (ICT s) creates new legal challenges to rights and their judicial interpretation. This article aims at analysing the prospects of the Palestinian Supreme Constitutional Court (SCC) concerning digital rights, while considering political and legal challenges. In doing so, it begins with a brief introduction to the concepts of digital right and digital constitutionalism. The article further describes the status of digital rights in Palestine and evaluates the role of the SCC in the adjudication of the constitutionality of the laws in relation to human rights protection on the internet. It finally offers proposals for understanding the necessity for constitutional protection of digital rights in Palestine through judicial review. It argues that the Palestine needs constitutional modernisation to address the legal implications of technologies on human rights.

INTERACTION OF CONSTITUTIONAL LAW AND INTELLECTUAL PROPERTY RIGHTS IN THE REPUBLIC OF KAZAKHSTAN

The article is devoted to the interaction of intellectual property law with the constitutional law of the Republic of Kazakhstan (hereinafter - RK). The Constitution of the Republic of Kazakhstan proclaims freedom of work and profession, as well as freedom of choice of creativity. Paragraph 1 of Article 20 of the Constitution of the Republic of Kazakhstan states that freedom of creativity is guaranteed. Currently, the scientific research of Kazakhstani scientists does not pay enough attention to the freedom of creativity. The analysis of materials and documents of the Constitutional Court of the Republic of Kazakhstan indicates the absence of a deeper analysis of the constitutional guarantee of freedom of creativity and the limits of this freedom. In addition, there are no provisions on intellectual property in the Constitution of the Republic of Kazakhstan, and the interpretation of norms can only be literal, and we are talking only about freedom of creativity. In this article, the author attempts to show the problems of interaction of intellectual property law with constitutional law, since the relationship between them is deeper than it is reflected in the Constitution of the Republic of Kazakhstan. In the legal literature, most studies of the constitutional and legal regulation of creative relations are reduced only to the objects of copyright, while the freedom of creativity lies in invention, the objective expression of means of individualization. The author has analyzed the concepts of creativity and freedom of creativity and justifies the need for the constitutional consolidation of intellectual property guarantees, to obtain constitutional and legal protection, since it has a significant role in the state policy of the development of the economy of Kazakhstan, expressed in industrialization and the widespread use of digital technologies, which are based on creative intellectual activity. In this regard, it is not enough to establish only a constitutional and legal guarantee of freedom of creativity and labor, it is necessary to include intellectual property norms in the Constitution of the Republic of Kazakhstan, thereby enabling authors and the copyright holder to constitutionally protect their rights and legitimate interests.

플랫폼 노동자의 근로권에 관한 헌법적 검토

Platform work has emerged and spread due to fundamental changes in the economy and labor environment and the avoidance of direct employment. Platform work refers to “paid labor provided through a digital platform that brokers work to an unspecified number of people and coordinates the labor provision process through algorithms,” and its types include local-based and web-based. The right to work, a fundamental right under the Constitution, is embodied in individual labor relations laws, including the Labor Standards Act, and the recognition of worker status under the Labor Standards Act is the gateway to exercising the right to work in practice. However, platform workers were not envisioned when the Constitution stipulated the right to work and the Labor Standards Act was enacted, and it is not easy for them to be recognized as employees under the Labor Standards Act based on the current Labor Standards Act and case law. Platform workers are essentially the same as traditional employees in that they earn their livelihood through paid labor, and therefore need constitutional protection. However, there are a number of other aspects that distinguish platform workers from traditional employees that need to be considered. The spectrum of platform workers is very diverse, and it may be appropriate to vary the approach according to the degree of dependency. Platform workers with strong dependency, which is a marker of traditional workers, should be recognized as employees under the Labor Standards Act, while platform workers with weaker dependency should be categorized as a third type. However, it is not appropriate to include them in the category of ‘persons in special types of employment’, which require full-time and permanent status and are gradually being replaced by the concept of labor providers. Regardless of their legal status, platform workers should be guaranteed minimum universal rights as workers.

Responsive Constitutionalism in Australia

Responsive constitutionalism is a theory of constitutionalism that starts from the idea that democracy involves two overlapping commitments — to a relatively thin ‘minimum core’ set of norms and institutions and thicker, more contestable set of rights and deliberative commitments. It then proceeds to affirm a commitment both to legal and political constitutionalism. This article explores the relevance of this theory for Australian constitutionalism and suggests that it in fact has strong resonance with the Australian constitutional tradition. First, the capital ‘C’ Constitution gives strong legal protection to the ‘minimum core’ of democracy in ss 7, 24 and the High Court’s decisions on the implied freedom of political communication and access to the franchise. Second, the small ‘c’ constitution adopts norms that help protect the democratic minimum core and advance a responsive approach to thicker democratic commitments to rights. Third, there are important connections between the idea of responsive constitutionalism and limits on the scope legal constitutionalism and judicial review in Australia. Yet, there are also ways in which a responsive approach points to potential reforms of the Australian constitutional model — to include more robust rights-based constitutional protections, albeit in ways that are premised on a notion of shared legal and political authority and enforcement, and therefore involve a ‘weak-form’ national rights charter or extended principle of legality.

Sustainability Constitutionalism: Adopting National Perspectives on Sustainability

The development of environmental constitutional rights has provided important legal advances in procedure, standing, enforcement and remedies for matters concerning environmental protection and conservation. The constitutional textualization of environmental norms represents a significant development in both constitutional and environmental law, as well as providing a powerful impetus for cross-disciplinary research. These developments have not been mirrored to the same extent with sustainability thresholds and practices. Just as environmental rights are a legitimate avenue for constitutional protection, this article argues a similar position should accord to sustainability rights in constitutions by constitutional textualization of sustainability standards and thresholds. Achieving this constitutional recognition ensures sustainability has a national agenda for a sustainable future.

How Might Corporations' and Nonhuman Animals' Personhood Compare Under the Fifth and Fourteenth Amendments?

The Fourteenth Amendment to the US Constitution prohibits states from depriving any person "equal protection of the laws," and the Constitution's Fifth Amendment has been interpreted as applying this prohibition to the federal government. This article considers whether constitutional equal protection should apply to some nonhuman animals in light of corporations having gained such protection and concludes that expanding equal protection personhood to nonhuman animals is improbable in the present legal landscape.

Permanent Stress Adaptation and Unexpected High Light Tolerance in the Shade-Adapted Chlamydomonas priscui.

The Antarctic photopsychrophile, Chlamydomonas priscui UWO241, is adapted to extreme environmental conditions, including permanent low temperatures, high salt, and shade. During long-term exposure to this extreme habitat, UWO241 appears to have lost several short-term mechanisms in favor of constitutive protection against environmental stress. This study investigated the physiological and growth responses of UWO241 to high-light conditions, evaluating the impacts of long-term acclimation to high light, low temperature, and high salinity on its ability to manage short-term photoinhibition. We found that UWO241 significantly increased its growth rate and photosynthetic activity at growth irradiances far exceeding native light conditions. Furthermore, UWO241 exhibited robust protection against short-term photoinhibition, particularly in photosystem I. Lastly, pre-acclimation to high light or low temperatures, but not high salinity, enhanced photoinhibition tolerance. These findings extend our understanding of stress tolerance in extremophilic algae. In the past 2 decades, climate change-related increasing glacial stream flow has perturbed long-term stable conditions, which has been associated with lake level rise, the thinning of ice covers, and the expansion of ice-free perimeters, leading to perturbations in light and salinity conditions. Our findings have implications for phytoplankton survival and the response to change scenarios in the light-limited environment of Antarctic ice-covered lakes.

Violence during transition: accounts of gender-affirming care in South Africa’s public health system

Despite constitutional protections afforded to the LGBTQ+ community, South Africa remains a society violent towards gender minorities. With public healthcare over-burdened, this system of care remains particularly unresponsive to the needs of transgender people who seek to affirm their gender medically. With a narrative design, this research explored the experiences of transgender people of violence through their access to gender-affirming care. This study troubled the notion of violence from a social determinant of health to situate it as an unexplored mechanism of meaning-making in the South African context. Using gatekeepers aligned with LGBTQ+ support groups, 15 volunteer participants recollected their accounts through semi-structured interviews. Using this undirected talk, the narrative analysis found that gaps in care become a key point in the narrative trajectory of participants shaping their decision-making around experiences of interpersonal violence and for personal advocacy with healthcare professionals. Similarly, the clinic was narrated as a site of violence both symbolically through invasive bodily examinations and structurally as a place for perpetrators of anti-transgender violence to target transgender patients. Transition in this context can be seen as a mode to understand several competing violence/s where the body is treated as a site for physical, psychological and structural harm.

The Fate of “Essential Religious Practices” in India's Constitutional Courts

It has been nearly seven decades since the Indian Supreme Court laid down the “essential religious practices” test to determine which religious practices are granted constitutional protection against state regulation. This article surveys the forty-three cases in which the essentiality plea has been raised since its formulation in 1954 until August 2022. Although the essentiality plea has a staggeringly high failure rate of 84 percent before India's constitutional courts, judicial decisions show a shift in legal rationale. The article shows that many of these decisions invariably reflected the socioreligious context of their time. An increase in anti-Muslim religious polarization meant that the fate of the essentiality plea differed depending on the religion of litigants. This judicial treatment of cases stands in stark contrast to the cases decided during the initial decades of the Constitution, when the government was avowedly secular.